Bhavilai v. Microsoft Corporation
| Pasinee Bhavilai |
| Microsoft Corporation |
| 1:2022cv03440 |
| June 30, 2022 |
| US District Court for the Northern District of Illinois |
| Thomas M Durkin |
| P.I.: Other |
| 28 U.S.C. § 1332 Diversity-Petition for Removal |
| Both |
Docket Report
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| Filing 31 MINUTE entry before the Honorable Thomas M. Durkin: Defendant Microsoft has moved to dismiss #24 Plaintiff's claims for violation of the Illinois Biometric Information Protection Act ("BIPA") alleging that Microsoft possesses her "facial biometric data" when third parties take her photo with phones running Microsoft's Window operating system. The Court has identified two issues the parties have not addressed which require additional briefing. First, under BIPA, "[b]iometric identifiers do not include... photographs." This appears to require dismissal of Plaintiff's claims, but neither party references this provision of the statute. Second, in addition to the definition of "biometric identifiers," BIPA includes a definition of "biometric information," which is defined as "any information, regardless of how it is captured, converted, stored, or shared, based on an individual's biometric identifier used to identify an individual." Neither party has addressed whether Plaintiff has plausibly alleged that Microsoft's actions satisfy the ending clause of the definition: i.e., "used to identify an individual." This clause might be subject to two interpretations. One the one hand, it might mean that the defendant must use the information to identify the plaintiff in order to be violate BIPA. On the other hand, it might mean that "biometric information" includes any information from which it is possible to identify an individual, regardless of whether the defendant has actually identified the plaintiff. The Court's current perspective is that the former interpretation is correct. The statute already defines "biometric identifier" as "a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry," all of which is information from which it can be possible to identify a person. The statute then adds the definition of "biometric information" which references actions by the defendant, such as "how it is captured, converted, stored, or shared." The clause "used to identify an individual" should also be understood as a requirement that the defendant have taken the action to use the biometric information to identify the plaintiff. Plaintiff here has not alleged that Microsoft used the photos taken by third parties to identify her. This also appears to be a basis to dismiss Plaintiff's claims. The parties may file briefs on these two issues of no more than five pages by 12/1/2023. Mailed notice. (kp, ) |
| Filing 30 REPLY by Microsoft Corporation to MOTION by Defendant Microsoft Corporation to dismiss / Microsoft Corporation's Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) #24 / Reply in Support of Microsoft Corporation's Motion to Dismiss (Attachments: #1 Exhibit 1)(Layden, David) |
| Filing 29 MEMORANDUM by Pasinee Bhavilai in Opposition to motion to dismiss #24 (Kingsbury, Timothy) |
| Filing 28 MINUTE entry before the Honorable Thomas M. Durkin: Unopposed motion for extension of time #27 is granted. Plaintiff's response to the motion to dismiss #24 is due by 3/13/2023. Defendant's reply is due by 4/3/2023. Mailed notice. (ecw, ) |
| Filing 27 MOTION by Plaintiff Pasinee Bhavilai for extension of time to file response/reply Plaintiff's Unopposed Motion for Extension of Time to Respond to Defendant's Motion to Dismiss (Kingsbury, Timothy) |
| Filing 26 MINUTE entry before the Honorable Thomas M. Durkin: The parties have agreed to the following briefing schedule as to the motion to dismiss #24 : Plaintiff's response is due by 2/27/2023; Defendant's reply is due by 3/20/2023. Mailed notice. (ecw, ) |
| Filing 25 MEMORANDUM by Microsoft Corporation in support of motion to dismiss #24 (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4)(Layden, David) |
| Filing 24 MOTION by Defendant Microsoft Corporation to dismiss / Microsoft Corporation's Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (Layden, David) |
| Filing 23 ANNUAL REMINDER: Pursuant to #Local Rule 3.2 (Notification of Affiliates)#, any nongovernmental party, other than an individual or sole proprietorship, must file a statement identifying all its affiliates known to the party after diligent review or, if the party has identified no affiliates, then a statement reflecting that fact must be filed. An affiliate is defined as follows: any entity or individual owning, directly or indirectly (through ownership of one or more other entities), 5% or more of a party. The statement is to be electronically filed as a PDF in conjunction with entering the affiliates in CM/ECF as prompted. As a reminder to counsel, parties must supplement their statements of affiliates within thirty (30) days of any change in the information previously reported. This minute order is being issued to all counsel of record to remind counsel of their obligation to provide updated information as to additional affiliates if such updating is necessary. If counsel has any questions regarding this process, this #LINK# will provide additional information. Signed by the Executive Committee on 12/29/2022: Mailed notice. (tg, ) |
| Filing 22 First AMENDED complaint by Pasinee Bhavilai against Microsoft Corporation (Kingsbury, Timothy) |
| Filing 21 MINUTE entry before the Honorable Thomas M. Durkin: Plaintiff's unopposed motion for leave to file first amended class action complaint #20 is granted. Defendant is to file its response to Plaintiff's First Amended Class Action Complaint by 1/30/2023. The previously filed motion to dismiss #11 is denied as moot. Mailed notice. (ecw, ) |
| Filing 20 MOTION by Plaintiff Pasinee Bhavilai for Leave to File First Amended Class Action Complaint (Unopposed) (Attachments: #1 Exhibit A - First Amended Class Action Complaint, #2 Exhibit B - Redline)(Kingsbury, Timothy) |
| Filing 19 MINUTE entry before the Honorable Thomas M. Durkin: Unopposed motion for extension of time #18 is granted. Plaintiff's deadline to file her response to Defendant's Motion to Dismiss #11 is extended to 12/14/2022 and Defendant's deadline to file its reply is extended to 1/13/2023. Mailed notice. (ecw, ) |
| Filing 18 MOTION by Plaintiff Pasinee Bhavilai for extension of time to Respond to Defendant's Motion to Dismiss [Unopposed] (Kingsbury, Timothy) |
| Filing 17 MINUTE entry before the Honorable Thomas M. Durkin: Defendant Microsoft's motion for discovery #9 is denied. The discovery Microsoft seeks is unnecessary because Microsoft should know who it has arbitration agreements with. If Microsoft can demonstrate that is has an arbitration agreement with Plaintiff, Microsoft remains free to move to compel arbitration. Otherwise, the briefing schedule on the motion to dismiss for failure to state a claim #11 is as follows: Plaintiff's response is due 11/30/2022; and Microsoft's reply is due 12/21/2022. Mailed notice. (ecw, ) |
| Filing 16 REPLY by Defendant Microsoft Corporation to response in opposition to motion, #15 Reply in Support of Microsoft Corporation's Motion (1) for Leave to Conduct Limited Early Discovery Regarding Potential Application of Arbitration Agreements, and (2) to Defer Briefing and Resolution of Microsoft's Motion to Dismiss Under Fed. R. Civ. P. 12(B)(6) (Attachments: #1 Exhibit 1, #2 Exhibit 2)(Layden, David) |
| Filing 15 RESPONSE by Pasinee Bhavilaiin Opposition to MOTION by Defendant Microsoft Corporation for discovery / Microsoft Corporation's Motion (1) for Leave to Conduct Limited Early Discovery Regarding Potential Application of Arbitration Agreements, and (2) to Defer Briefing and Resolution of Micr #9 (Kingsbury, Timothy) |
| Filing 14 MINUTE entry before the Honorable Thomas M. Durkin: The Court is in receipt of the Parties' Joint Submission Regarding Briefing Schedule Proposals #13 , and adopts Microsoft's proposal. Plaintiff's response to Microsoft's motion for leave to conduct limited early discovery and to defer briefing of Microsoft's Rule 12(b)(6) motion #9 is due by 9/19/2022. Microsoft's reply in support of the motion for leave to conduct early discovery is due by 10/10/2022. The Court will address the briefing schedule with respect to Microsoft's Rule 12(b)(6) motion when the Court resolves Microsoft's motion for leave to conduct limited early discovery. The 9/8/2022 joint status report deadline is vacated. Mailed notice. (ecw, ) |
| Filing 13 Parties' Joint Submission Regarding Briefing Schedule Proposals by Microsoft Corporation (Layden, David) |
| Filing 12 MEMORANDUM by Microsoft Corporation in support of motion to dismiss #11 / Memorandum in Support of Microsoft Corporation's Motion to Dismiss (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4)(Layden, David) |
| Filing 11 MOTION by Defendant Microsoft Corporation to dismiss / Microsoft Corporation's Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (Layden, David) |
| Filing 10 MEMORANDUM by Microsoft Corporation in support of motion for discovery, #9 / Memorandum in Support of Microsoft Corporation's Motion (1) for Leave to Conduct Limited Early Discovery Regarding Potential Application of Arbitration Agreements, and (2) to Defer Briefing and Resolution of Microsoft's Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6)(Layden, David) |
| Filing 9 MOTION by Defendant Microsoft Corporation for discovery / Microsoft Corporation's Motion (1) for Leave to Conduct Limited Early Discovery Regarding Potential Application of Arbitration Agreements, and (2) to Defer Briefing and Resolution of Microsoft's Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6) (Layden, David) |
| Filing 8 MINUTE entry before the Honorable Thomas M. Durkin: Unopposed motion for extension of time #7 is granted. Defendant Microsoft is to file a response to Plaintiff's complaint by 8/22/2022. Mailed notice. (ecw, ) |
| Filing 7 MOTION by Defendant Microsoft Corporation for extension of time / Defendant Microsoft Corporation's Unopposed Motion for Extension of Time to Respond to Complaint (Layden, David) |
| Filing 6 ATTORNEY Appearance for Defendant Microsoft Corporation by Elena Marie Olivieri (Olivieri, Elena) |
| Filing 5 ATTORNEY Appearance for Defendant Microsoft Corporation by David Charles Layden (Layden, David) |
| Filing 4 MINUTE entry before the Honorable Thomas M. Durkin: By 9/8/2022, the parties are to file a joint status report. The parties may refer to the format detailed on the Court's website under New and Reassigned cases. Mailed notice. (ecw, ) |
| Filing 3 MAILED Notice of Removal letter to counsel of record.(cxr, ) |
| CASE ASSIGNED to the Honorable Thomas M. Durkin. Designated as Magistrate Judge the Honorable Jeffrey Cole. Case assignment: Random assignment. (ey, ) |
| CLERK'S NOTICE: Pursuant to Local Rule 73.1(b), a United States Magistrate Judge of this court is available to conduct all proceedings in this civil action. If all parties consent to have the currently assigned United States Magistrate Judge conduct all proceedings in this case, including trial, the entry of final judgment, and all post-trial proceedings, all parties must sign their names on the attached #Consent To# form. This consent form is eligible for filing only if executed by all parties. The parties can also express their consent to jurisdiction by a magistrate judge in any joint filing, including the Joint Initial Status Report or proposed Case Management Order. (cxr, ) |
| Filing 2 Defendant Microsoft Corporation's Corporate Disclosure STATEMENT by Microsoft Corporation (Layden, David) |
| Filing 1 NOTICE of Removal from Circuit Court of Cook County, Illinois, Chancery Division, case number (2022CH04962) filed by Microsoft Corporation Filing fee $ 402, receipt number AILNDC-19614238. (Attachments: #1 Exhibit 1, #2 Civil Cover Sheet)(Layden, David) Modified on 7/1/2022 (gcy, ). |
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| Plaintiff: Pasinee Bhavilai | |
| Represented By: | Timothy Patrick Kingsbury |
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| Defendant: Microsoft Corporation | |
| Represented By: | David Charles Layden |
| Represented By: | Elena Marie Olivieri |
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